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Tuesday, February 01, 2005

Against Oxymorons--Even Less Moronic Ones...

Publius and Lord Coke:

As I read your posts on Bush's inaugural and the intriguing note by another Fed Soc member on SSRN, I was not clear on what the two of you are calling for. It's one thing to see that the ownership society is a good--I'd agree with that of course. It's another to imagine that a good way to bring it about is with an expansion of the substantive due process line of cases (born not in Lochner but, even more ignominiously, in Dred Scott, for those keeping score at home). This is a doctrine that needs a stake driven through its heart, rather than a resurrection of the few instantiations we've already managed to kill off.

Surely you agree with Bork's criticism of Lochner from Tempting of America:

"In his 1905 opinion, Justice Peckham, defending liberty from what he conceived to be 'a mere meddlesome interference,' asked rhetorically, '[A]re we all . . . at the mercy of legislative majorities?' The correct answer, where the Constitution is silent, must be 'yes.' Being 'at the mercy of legislative majorities' is merely another way of describing the basic American plan: representative democracy. We may all deplore its results from time to time, but that does not empower judges to set them aside; the Constitution allows only voters to do that."

In short, even if substantive due process can be put to good ends, shouldn't a federalist eschew the model of judge as roving commissioner of goodness? Otherwise we're just the ACS with a different economic program, and no legal doctrine to distinguish ourselves from those legendary activist judges. Yet Lord Coke seems to suggest that if a lame-brained doctrine like substantive due process, whose very name offends the sensibilities of all caring souls, serves some abstraction like "certain institutions should primarily be ruled by laws created by individuals" then we might want to embrace it. But I must misread your intentions in invoking Lochner...right?

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